STATE OF NEW JERSEY v. ROICEE THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5528-06T45528-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROICEE THOMAS,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 12, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-08-842.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (William P. Fisher, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Roicee Thomas appeals from a final order denying his petition for post-conviction relief (PCR) entered on November 2, 2006, in the Superior Court, Law Division. Having carefully reviewed defendant's arguments in light of the attendant facts and applicable law, we affirm the order denying his petition.

The relevant procedural history leading to this appeal can be briefly summarized. On August 28, 1998, a Mercer County grand jury returned Indictment No. 98-08-842 charging defendant in twenty counts with crimes relating to armed robberies that occurred on two separate dates. Counts one through five of the indictment related to a May 23, 1998, armed robbery at the Speedi Mart located at 1097 Parkway Avenue in Ewing Township, and counts six through twenty related to a May 25, 1998, armed robbery at the Deli Mart located at 206 Sanhican Drive in Trenton. On October 23, 2001, defendant entered a plea of guilty to two counts: count one, first-degree robbery, N.J.S.A. 2C:15-1, and count six, first-degree armed robbery, N.J.S.A. 2C:15-1.

Pursuant to the plea agreement, the State agreed to recommend dismissal of the remaining eighteen counts of the indictment. In furtherance of the agreement, the State also was to recommend an aggregate term of twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing, defendant acknowledged his understanding of the terms of the agreement as follows:

Q. Now, the plea arrangements in this case contemplate that you would receive a 20 year sentence with the No Early Release Act or the 85 percent law applicable on each of the counts of the indictment that you had pleaded guilty to. And those sentences would run concurrently with one another so that you would face a maximum total of 20 years with 85 percent or 17 years without parole. Do you understand that?

A. Yes.

Q. And you understand that upon release, the law requires that you serve five years on parole upon your release. You understand that?

A. Yes.

. . . .

Q. You also understand that the State is reserving the right to apply to the Court for a sentence less than the agreed upon sentence in these plea arrangements under the following circumstances: You have agreed to testify or to fully and truthfully cooperate with the State in the investigation and prosecution of pending homicide cases which are under present investigation by the State of New Jersey, the Mercer County Prosecutor's Office, is that correct?

A. Yes.

Q. And part of that cooperation would mean -- would entail your testimony at those cases -- in those cases should they go to trial. Do you understand that?

A. Yes.

Q. And upon the completion of said prosecutions, the State shall evaluate and assess your level and extent of cooperation and make such recommendations to [the judge] . . . as the State deems just under the circumstances as to a modification, if, at all, of any sentence you receive. Do you understand that?

A. Yes.

Q. And there are no specific promises of lenience made until such time as the investigations have been completed and the State has made that assessment. Do you understand that?

A. Yes.

The sentencing hearing did not take place until July 12, 2002. On that date, after an initial disagreement as to whether a lesser sentence was warranted even though defendant had not been called upon to testify against others, the State recommended two concurrent seventeen-year terms with an eighty-five percent parole disqualifier instead of the twenty-year terms set forth in the plea forms. This three-year modification of the terms anticipated by the plea agreement, recommended by the State after consultation and negotiation with defendant's attorney, was accepted by the court. Defendant took the position the sentence should have been fifteen years or even lower.

Defendant appealed his sentence in April 2003, and the matter was considered, pursuant to Rule 2:9-11, on the Excessive Sentence Oral Argument (ESOA) calendar on October 9, 2003. The panel determined that the sentence was not manifestly excessive or unduly punitive and it affirmed the sentence imposed. Subsequently, defendant filed a petition for PCR on the ground of ineffective assistance of trial and appellate counsel. That petition was heard on October 23, 2006, and it was denied in its entirety on that same date. On appeal from the denial of his PCR motion, defendant contends the trial court erred in denying the petition or, alternatively, in denying counsel's request for an evidentiary hearing. Defendant raises the following arguments:

A. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT AT SENTENCING AS REFLECTED BY HIS VERBAL ASSAULT AGAINST HIM AS WELL AS BY HIS FAILURE TO PRESENT ANY LEGAL ARGUMENT WHATSOEVER REGARDING THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS.

1. TRIAL COUNSEL'S CONDUCT TOWARD THE DEFENDANT AT SENTENCING REFLECTED A DESTRUCTION OF THE ATTORNEY-CLIENT RELATIONSHIP TO THE DETRIMENT OF THE DEFENDANT.

2. TRIAL COUNSEL FAILED TO EVEN REMOTELY ATTEMPT TO DEMONSTRATE THE APPLICABILITY OF NUMEROUS MITIGATING FACTORS ON HIS CLIENT'S BEHALF EMBODIED IN N.J.S.A. 2C:44-1B(2), (4) AND (11).

3. TRIAL COUNSEL FAILED TO OFFER ANY LEGAL ARGUMENT WHATSOEVER REGARDING THE INAPPLICABILITY OF N.J.S.A. 2C:44-1A(1) AS AN AGGRAVATING FACTOR.

4. SINCE TRIAL COUNSEL'S CONDUCT SATISFIED BOTH PRONGS OF THE STRICKLAND STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE WAS AT LEAST ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

To succeed on an ineffective assistance of counsel claim, defendant must meet the two-prong test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show "that counsel's performance was deficient" and second, "that the deficient performance prejudiced the defense." Id. at 687. The latter meaning that counsel's errors were so egregious "'as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Judicial review of counsel's performance is highly deferential, and must "'avoid viewing the performance under the "'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. An attorney's "failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," rather, defendant "must show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Davis, 116 N.J. 341, 351 (1989) (quoting Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97).

Our analysis first examines defendant's asserted belief that he should have been sentenced more leniently as a result of his cooperation with the State in the prosecution of others. Defendant's plea agreement was explained in detail on the record at his plea hearing. Included in the explanation were the limited terms on which defendant would be allowed to withdraw his guilty plea and the acknowledgement that "there are no specific promises of lenience [sic] made until such time as the investigations have been completed and the State has made that assessment." Defendant expressly acknowledged his understanding that the term of incarceration, to which the parties had agreed, was a total of twenty years, with the State reserving the right to recommend leniency in exchange for defendant's testimony in other criminal cases. Ultimately, defendant's assistance in other prosecutions was not of great value and he was not required to testify. Nevertheless, in consideration of defendant's effort and cooperation, the State recommended a three-year reduction in the proposed twenty-year sentences. The colloquy at the sentencing hearing reveals that reduction was brought about, in part, as a result of defense counsel's persistence in the pre-hearing discussions.

At sentencing, defendant asserted that both his counsel and head of the Public Defender's office had misinformed him that his sentence would be less than seventeen-years and that he could withdraw his guilty plea and proceed to trial if he did not like the State's recommendation. While a defendant, misinformed about a material element of a plea negotiation, may be permitted to withdraw the plea, State v. Nichols, 71 N.J. 358, 361 (1976); State v. Brown, 71 N.J. 578, 580-82 (1976), here defendant's assertions are contradicted by the recorded exchanges at the plea hearing. At that time, defendant agreed that no promises had been made to get him to plea guilty "apart from those promises that [counsel] just outlined rather extensively on the record."

Additionally, defendant contends that his trial attorney's denial of the alleged misrepresentation during sentencing demonstrated a breakdown in the adversary process which thereby prejudiced the outcome of defendant's sentence. More particularly, defense counsel represented to the court that he did not, nor did the head of the Public Defender's office, promise defendant anything concerning sentencing outside of what was in the record. In doing so, counsel indiscreetly protested by saying:

And since this is a direct frontal assault on my integrity and the probity of the head of the office of the Public Defender in Mercer County, I can state that what -- what Mr. Thomas is saying is an untruth. It's otherwise known as a lie. And, because he was never told that by me or [my colleague] and I so represent to the court.

In essence, defense counsel was merely informing the judge that his client was falsely accusing him of something he did not do. The State also stated for the record, it had not made any such representations to defendant.

A criminal defense attorney may freely defend communications he did or did not have with his client regarding all trial decisions where defendant seeks to overturn his conviction on the grounds of ineffective assistance of counsel, "fraud or other improper or unprofessional conduct." State v. Humphreys, 89 N.J. Super. 322, 325 (App. Div. 1965); accord State v. Bey, 161 N.J. 233, 296 (1999). Effective representation does not require an attorney to allow his clients to compromise his professional reputation. Furthermore, N.J.S.A. 2A:84A-20(2)(c) provides that no attorney-client privilege extends "to a communication relevant to an issue of breach of duty by the lawyer to his client, or by the client to his lawyer." N.J.R.E. 504(2)(c).

Most significant, however, is the fact that the sentencing judge was not distracted or influenced by this disagreement. The judge focused on what had been placed in the record when the plea was accepted and what he perceived as fair and reasonable under the circumstances:

THE COURT: The plea agreement is the plea agreement. And it says nothing more than simply that if you're cooperative, the State would recommend to the Court possibly a reduction in your sentence. The State has done that. And when I consider that -- because I'm not bound by any of this. I'm not even bound by the plea agreement. If -- we use that term agreement, it's really between you and the State in terms of each of you giving up certain rights and assuming certain obligations because you believe there's a benefit to be achieved for each of you. But, I'm not bound by any of it. But, when I look at it, I look at it to see if it's something that I would enforce based upon the information known at the time, any subsequent information, whether there had been informed consent. All those factors I look at because otherwise why would I necessarily change an agreement, if I can use that in quotes, that the parties made unless the interests of justice demanded for a reason such as I said that I'd do that. The agreement is clear on its face between the parties. There's no mistake as to what it is. And, I think the recommendation in line with what you have pled to is extremely reasonable and I'm inclined to accept it.

Both the reviewing ESOA panel and the PCR judge concluded that defendant received a reasonable, if not lenient, plea agreement under the circumstances, and that the sentence imposed was in accord with the plea agreement. Nevertheless, defendant seeks to have his sentence reduced further by placing blame on his attorney and the State for somehow deceiving him. The record reflects otherwise, and we perceive nothing in the record that gives us reason to disturb the judgment that was entered. See also R. 3:22-5 (stating "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings").

Defendant next contends that defense counsel was negligent in failing to raise mitigating factors under N.J.S.A. 2C:44-1(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"), and N.J.S.A. 2C:44-1(4) ("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"). We find no merit in these contentions. In the latter regard, defendant asserts that his history of mental illness should have been presented as grounds tending to excuse or justify his offenses. Defendant relies on three expert reports evaluating his mental condition. He was previously diagnosed with anti-social personality disorder. However, he was found to be lucid and mentally competent to stand trial, and he was found to have understood the terms and consequences of his guilty plea. Moreover, two of the three reports concerning his mental condition concluded that defendant was manipulative; he had a "tendency to exaggerate or confabulate symptoms in order to evade incarceration." It was not a misapplication of discretion for counsel or the court not to place substantial stock in the mitigating effect of defendant's mental condition.

Generally, depression or anti-social disorders, have little or no relevance as to state of mind. See State v. Pitts, 116 N.J. 580, 608 (1989). "Indeed, no evidence of mental disease or by way of explanation of defendant's conduct is relevant (or even admissible) unless it bears on whether he had the requisite mental state . . . ." State v. Watson, 261 N.J. Super. 169, 178-79 (App. Div. 1992). Here, none of the expert reports raised any doubt as to defendant's ability to contemplate that his conduct of armed robbery would cause or threaten serious harm. Failing to raise these mitigating factors did not prejudice defendant in any way, and was within defense counsel's discretion as to reasonable defense strategy.

Defendant also alleges, and we agree, that the trial judge should not have relied on the aggravating factor embodied in N.J.S.A. 2C:44-1a(1) which considers: "The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." There is not sufficient credible evidence in the record to support a finding that aggravating factor (1) applied. In spite of this conclusion, we find the application of factor (1) to be harmless error.

Indeed, the judge found that aggravating factors (9) and (6) applied due to defendant's extensive serious criminal record and the need to deter defendant from further criminal acts. Moreover, the PCR judge noted that in addition to the two serious offenses for which defendant was being sentenced, defendant has twenty-eight arrests, nine upper-court convictions, and three lower-court convictions. In light of such a substantial criminal history, the PCR court suggested aggravating factor (3) could have applied as well. While we decline to embrace that as an additional basis for the sentence, we agree that even if factor (1) had not been applied, that would not have made a material difference in the sentence imposed. In the end, we do not lose sight of the fact that the sentence was the product of a negotiated plea.

Defendant next contends that the PCR court erred in denying an evidentiary hearing. Defendant claims that he has established a prima facie case and is entitled to an evidentiary hearing to investigate both trial and appellate counsel's effectiveness. The PCR court determined that no prima facie case had been made out to support defendant's ineffective assistance of counsel claim. After a careful review of the record, we agree. State v. Preciose, 129 N.J. 451, 461 (1992); R. 3:22-2. It is not enough for the petitioner "to allege simply that an injustice has transpired." State v. Mitchell, 126 N.J. 565, 579 (1992). The petitioner must be prepared to establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Ibid. The petitioner must allege and articulate specific facts which, if believed, would give the court an adequate basis upon which to rest its decision. Id. at 579. It is clear from the record created at the plea hearing and the sentencing hearing that, other than his own assertions, there is nothing and no one to support defendant's claim that he was promised a more lenient sentence.

Thus, an evidentiary hearing for a PCR petition was not required. The trial court has discretion to conduct such a hearing if the defendant has established a prima facie case of ineffective assistance of counsel. Precoise, supra, 129 N.J. at 462, but in order to warrant an evidentiary hearing, defendant was also required to demonstrate a reasonable likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 157 (1992), certif. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). It has been said that "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted).

 
Defendant has failed to show a reasonable likelihood of success on the merits. Based on our careful review of the record, the PCR court properly denied his request for an evidentiary hearing.

Affirmed.

(continued)

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A-5528-06T4

March 30, 2009